26-1060. Action by the convening authority

A. After a trial by court-martial, the record shall be forwarded to the convening authority, as reviewing authority, and action on the record may be taken by the person who convened the court, a commissioned officer commanding for the time being, a successor in command or the governor.

B. The authority under this section to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. Under rules of the adjutant general, a commissioned officer commanding for the time being, a successor in command or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority.

C. Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required, but such person, in his sole discretion, may dismiss any charge or specification by setting aside a finding of guilty or change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.

D. Before acting under this section on any general court-martial case or any special court-martial case that includes a bad conduct discharge, the convening authority or other person taking action under this section shall obtain and consider the written recommendation of the staff judge advocate. The convening authority or other person taking action under this section shall refer the record of trial to his staff judge advocate, and the staff judge advocate shall use the record in the preparation of his recommendation. The recommendation of the staff judge advocate or legal officer shall include matters that the governor prescribes by rule and shall be served on the accused, who shall have ten days from the date of receipt in which to submit any matter in response. The convening authority or other person taking action under this section, for good cause, may extend that period for up to an additional twenty days. Failure to object in the response to the recommendation or to any matter attached to the recommendation waives the right to object.

E. The convening authority or other person taking action under this section, in his sole discretion, may order a proceeding in revision or a rehearing.

F. A proceeding in revision may be ordered if there is an apparent error or omission in the record or if the record shows improper or inconsistent action by a court-martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. A proceeding in revision shall not:

1. Reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty.

2. Reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some article of this chapter.

3. Increase the severity of some article of the sentence unless the sentence prescribed for the offense is mandatory.

G. A rehearing may be ordered by the convening authority or other person taking action under this section if he disapproves the findings and sentence and states the reasons for disapproval of the findings. If such person disapproves the findings and sentence and does not order a rehearing, he shall dismiss the charges. A rehearing as to the findings may not be ordered if there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered if the convening authority or other person taking action under this subsection disapproves the sentence.